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SUNDER LAL versus SURAJ PRASAD GUPTA

High Court of Judicature at Allahabad

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Sunder Lal v. Suraj Prasad Gupta - SECOND APPEAL No. 904 of 2001 [2007] RD-AH 10088 (24 May 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.19

Second Appeal No. 904 of 2001

Sunder Lal

Vs.

Suraj Prasad Gupta

*******

Hon. Dilip Gupta, J.

This Second Appeal has been filed by the plaintiff for setting aside the judgment and decree of the learned VIIIth Additional District Judge, Kanpur Nagar, whereby the Civil Appeal that had been filed by the defendant for setting aside the judgment and decree of the Trial Court was allowed.

The plaintiff had filed the Original Suit for permanent injunction to restrain the defendants from dispossessing the plaintiff from the tenanted accommodation and for a declaration that the plaintiff was in possession of the Suit accommodation. The plaintiff stated that he was in occupation of a portion in the ground of House No. 59/40 Bihrana Road, Kanpur Nagar as a tenant of defendant No. 1 for the last many years and that defendant No. 1 had been harassing him and attempted to demolish the tenanted accommodation. A sale deed was subsequently executed by the defendant No. 1 in favour of defendant No. 2. Thereafter as the said defendants threatened to dispossess the plaintiff by force the Suit was instituted. A written statement was filed by defendant No. 1 that House No. 59/40 Bihrana Road, Kanpur Nagar was a newly constructed house of which sanction was given by the Kanpur Development Authority on 21st June, 1979 and the provisions of U.P. Act No. 13 of 1972 were not applicable. The plaintiff had surrendered his tenancy by executing a document in writing and he has also delivered physical possession of the tenanted portion to defendant No. 1 who thereafter got new constructions done. Defendant No. 2 also filed a written statement stating that he along with his brothers had purchased the said property and the plaintiff was earlier a tenant of defendant No. 1. He surrendered his tenancy and thereafter new constructions were made by the previous landlord. The defendant No. 1 also sold the house to defendant No. 2 and his three brothers by a registered sale deed dated 21st December, 1981 and, therefore, defendant No. 2 along with his brothers became the owners and landlords of the said house.

The Trial Court decreed the suit holding that the document dated 11th February, 1980 paper No. 22-C by which the plaintiff is said to have surrendered his tenancy could not be proved as the earlier landlord did not give oral evidence. The Trial Court, therefore, held that the plaintiff was a tenant and, therefore, an injunction was issued restraining the defendant from interfering with the peaceful possession of the plaintiff.

The Appellate Court, however, recorded a finding that though the plaintiff was a tenant of defendant No. 1 earlier but he had surrendered his tenancy after executing the document paper No. 22-C and also gave physical possession of the tenanted portion to the landlord who thereafter demolished the building and made fresh constructions. The Appellate Court observed that it was not possible to examine the earlier landlord since had died but the signatures of the plaintiff on the deed by which he had surrendered his tenancy were genuine. The Lower Appellate Court also observed that if physical possession had not been given by the plaintiff to the earlier landlord at the time of executing the said document it would not have been possible for the landlord to demolish the building and make new constructions. The Appeal was, accordingly, allowed and the judgment and decree of the Trial Court was set aside.

I have heard learned counsel for the appellant and Sri A.C. Nigam learned counsel for the respondent at length.

The Lower Appellate Court has recorded a categorical finding that the plaintiff had surrendered his tenancy and executed the deed dated 11th February, 1980 (paper No. 22-C) and had also given physical possession of the premises to the earlier landlord defendant No. 1. Thereafter the defendant No. 1 demolished the building and made new constructions. It is, therefore, not open to the plaintiff to again claim tenancy rights in the newly constructed building. These findings have been arrived at on the basis of documentary and oral evidence and the findings recorded by the Trial Court have been reversed by giving cogent reasons.

Learned counsel for the appellant has not been able to substantiate that the findings recorded by the Lower Appellate Court are perverse. No substantial question of law arises for consideration in this Second Appeal. It is, accordingly, dismissed at the admission stage.    

Date: 24.5.2007

NSC


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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